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Freedom of information lawsuits

Heavens v. Pennsylvania Department of Environmental Protection, 912 CD 2012 (Pa. Commw. Ct. Apr. 9, 2013). Plaintiff had requested documents from the Pennsylvania Department of Environmental Protection (PADEP) in connection with a tank fire accident at a natural gas drilling site. PADEP declined to provide some documents on the ground that they were exempted from public access requirements. The court upheld PADEP’s determination, finding that PADEP had shown that the records fell within the noncriminal investigation exception or were protected by the attorney-client or work product doctrine privileges.

Powder River Basin Resource Council v. Wyoming Oil and Gas Conservation Commission, No. 94650-C (Wyo. Dist. Ct. Mar. 21, 2013). Four environmental groups filed a lawsuit alleging that the Wyoming Oil and Gas Conservation Commission unlawfully withheld the identities of hydraulic fracturing chemicals used by oil and gas producers. The complaint challenges Wyoming’s application of the trade secret exception under Commission rules that otherwise require oil and gas companies to disclose the chemicals they use in the hydraulic fracturing process. In March 2013, the Wyoming district court affirmed the agency’s determination that the information constituted trade secrets and was therefore exempt from disclosure. Plaintiffs are appealing the ruling to the Wyoming Supreme Court.

Citizens for a Healthy Cmty. v. U.S. Dep’t of Interior, No. 12-cv-01661 (D. Colo. Feb. 13, 2013). Plaintiff challenged BLM’s withholding of information requested under the federal Freedom of Information Act (FOIA). Plaintiff had requested Expressions of Interest (EOIs) for parcels in Colorado that were to be included in an upcoming sale of oil and gas leases, as well as all documents related to such EOIs. BLM declined to disclose certain information, including the identities of parties submitting EOIs. On administrative appeal, the Department of the Interior invoked FOIA’s exemption for commercial or financial information obtained from a person that is privileged or confidential (Exemption 4) as the basis for withholding the information. The court granted summary judgment to plaintiff on its FOIA claim, finding that Exemption 4 did not shield the information provided by an EOI submitter. The court rejected defendants’ contention that it was necessary to exempt such information from disclosure because exploration for oil and gas on public lands was very competitive and businesses’ interest in certain parcels and their preliminary investigative work to determine which parcels they were interested in should therefore be protected information. The court found that this contention “runs directly contrary to the purpose of the public sale process,” noting that competition in bidding would promote fair pricing for publicly owned minerals and that disclosure of the EOI information would permit plaintiff and others to raise concerns regarding the stewardship records of potential owners. The court subsequently denied a motion to intervene by the Western Energy Alliance, which sought to intervene for the sole purpose of filing an appeal. The federal defendants declined to appeal, and in April 2013 the requested information was released.